NPR Story

2:00 pm

Mon April 2, 2012

High Court Supports Strip Searches For Minor Offenders

In this Oct. 11, 2011, photo, Albert Florence sits at his home in Bordentown, N.J., with his attorney, Susan Chana Lask. Florence sued after being strip-searched in 2005 when he was arrested because of a computer error.

Mel EvansAP

The U.S. Supreme Court has ruled that guards may routinely strip search even minor traffic offenders when they are arrested and detained. The court's 5-4 ruling came in the case of a New Jersey man who was arrested because of a computer error.

Albert Florence, his wife and little boy were on their way to his parents' home in 2005, when they were pulled over by a state trooper. Mrs. Florence was at the wheel, but the trooper's roadside state records check showed a seven-year-old outstanding arrest warrant for Albert Florence for failing to pay a fine. Florence said he had paid the fine, and pulled out a receipt, which he kept in the car. But the trooper said there was nothing he could do. Florence was handcuffed and taken to the local county jail.

The state would later admit it had failed to properly purge the arrest warrant, but at the time of the arrest, the error turned into a "nightmare," Florence said. He was held in jail for seven days and strip-searched twice.

Florence said the experience "petrified" and "humiliated" him. Upon entering the jail, he was ordered to take a delousing shower, then inspected by a guard who was about "an arm's distance" away and instructed Florence to squat, cough and lift up his genitals.

Florence subsequently sued, contending that automatically strip-searching a person who is arrested for a minor offense violates the Constitution's ban on unreasonable searches.

But on Monday, the Supreme Court disagreed by a 5-4 vote. Writing for the court's conservative wing, Justice Anthony Kennedy noted that jails are "often crowded, unsanitary, and dangerous places," and that, therefore, the courts must defer to the judgment of correctional officials in order to prevent new inmates from putting lives at risk with weapons or contraband that they may "carry in on their bodies."

The Dissent

The dissenters, led by Justice Stephen Breyer, argued that when a detainee is brought in on a minor charge that involves neither violence nor drugs, correctional officials should have to cite some reason to justify a strip search, as opposed to a less invasive screening with a metal detector or even an inspection of a detainee in his or her underwear. There are some 700,000 arrests for such minor offenses each year, and most of those arrested are brought before a judge and released pending resolution of their case. But an undetermined number have found themselves behind bars because there is no judge on duty, because of a bureaucratic snafu, or an error — as in this case.

Breyer noted that people have been detained and strip-searched for offenses as minor as driving with an inoperable headlight, having outstanding parking tickets, violating a dog leash law, and riding a bike without an audible bell. None of these people could have anticipated being arrested, he said, and none would likely have hidden weapons inside their body cavities.

But Kennedy said that given the number of total arrests each year — 13 million — it would be unworkable for correctional officials to exempt one class of prisoner from strip searches. Indeed, he added, even people detained for minor offenses can turn out to be "the most devious and dangerous criminals." He cited, for instance, the case of Timothy McVeigh, the Oklahoma City bomber, who was detained initially for driving without a license plate.

A 'Frightening' Decision?

George Washington University law professor Orin Kerr says Monday's decision is a "green light" for prison officials.

"The justices in the majority don't want to micromanage jails," Kerr says. "So they're saying if the people running the jails think they need to do this, they should be able to do this."

Bernard Harcourt, a law professor at the University of Chicago, however, called the decision "frightening ... the kind of logic that can turn a democracy into a police state" because it is premised on the notion of eliminating all risk at the expense of those who reasonably pose little risk.

In fact, at least 10 states outlaw routine strip searches of those arrested for minor charges, and the Federal Bureau of Prisons and the U.S. Marshals Service bar visual body cavity searches for those arrested on misdemeanor or civil contempt charges. "What the court did was to take a practice that was not universal and give it its constitutional imprimatur," says Harvard Law School professor Carol Steiker. The open question, she said, is whether states that have forbidden this practice will now move to permit blanket strip searches of those arrested for minor charges.

Two of the justices in Monday's majority wrote concurring opinions in an apparent effort to soften the tone of the ruling. Chief Justice John Roberts and Justice Samuel Alito said that there might be some cases in which strip searches are not justified because they are conducted on prisoners who are not put in with other prisoners.

Court Rules On Immunity For Investigators

In a second opinion issued Monday, the court ruled unanimously that police investigators are immune from civil damage suits for giving false testimony to a grand jury.

The decision came in the case of Charles Rehberg, a Georgia accountant who sent anonymous faxes to businesses and community leaders describing dicey and embarrassing details about the financial practices at the leading hospital in Albany, Ga., Phoebe Putney Memorial. At the request of the hospital, the district attorney launched an investigation. During grand jury proceedings, the chief investigator testified that the accountant had assaulted a doctor and made harassing phone calls — information that since has proved to be untrue. Rehberg was indicted three times, and three times the charges were tossed out. He then sued the chief investigator, alleging that he knowingly gave false testimony to the grand jury.

But on Monday the Supreme Court ruled unanimously that such investigators are immune from such lawsuits.

Writing for the court, Justice Alito said that if witnesses could be sued over their grand jury testimony, they "might be reluctant to come forward to testify."

The justices said that witnesses who testify falsely can be prosecuted for perjury, and that the threat of such a criminal prosecution is an adequate safeguard. But critics pointed out that prosecutors rarely are willing to bring perjury charges against their own police investigators.

Copyright 2012 National Public Radio. To see more, visit http://www.npr.org/.

Transcript

AUDIE CORNISH, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.

ROBERT SIEGEL, HOST:

I'm Robert Siegel. And we begin this hour with another split decision at the U.S. Supreme Court. The court has ruled that prison guards may routinely strip-search even minor traffic offenders. Law professor Orin Kerr of George Washington University put it this way.

ORIN KERR: It's not good news if you've been arrested on a minor offense. It's great news if you're running a prison. This gives the government green light, for the most part, to do strip-searches at least without touching individuals whoever is brought into the jail.

SIEGEL: The court's five-to-four ruling came in the case of a New Jersey man who was arrested because of computer error. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: Albert Florence, his wife and little boy were in a celebratory mood as they motored to his parents' home after buying a new house. Mrs. Florence was at the wheel when a state trooper pulled her over and ran a check. When state records showed a seven-year-old outstanding warrant on Mr. Florence for failing to pay a fine, he was handcuffed and taken to the local county jail. As it later turned out, the state records were wrong. Florence had paid the fine years earlier, but the warrant for him had never been purged from state records. And seven years later, the error turned into a nightmare. He was held in jail for seven days and strip-searched twice. Upon entering the county jail, he was ordered to take a delousing shower, and then his body was inspected by a guard.

ALBERT FLORENCE: He was about at arm's distance, and he instructed me to turn around, squat, cough, lift up my genitals and then put on the orange jumpsuit.

TOTENBERG: Florence, the finance director for a BMW dealership, sued, contending that automatically strip-searching a person who's arrested for a minor offense violates the Constitution's ban on unreasonable searches. But today, the Supreme Court disagreed by a five-to-four vote. Writing for the court's conservative wing, Justice Anthony Kennedy noted that jails are often crowded, unsanitary and dangerous places, and that therefore, the courts must defer to the judgment of correctional officials in order to prevent new inmates from putting lives at risk with weapons or contraband that they may carry in on their bodies.

The dissenters, led by Justice Stephen Breyer, argued that when a detainee is brought in on a minor charge that involves neither violence nor drugs, correctional officials should have to cite some reason to justify a strip-search as opposed to a less invasive search with a metal detector or even an inspection of a detainee in his or her underwear. Breyer noted that people have been detained and strip-searched for offenses as minor as driving with an inoperable headlight, having outstanding parking tickets, violating a dog leash law and riding a bike without an audible bell.

None of these people could have anticipated being arrested, he said, and none will likely have hidden weapons inside their body cavities. But Justice Kennedy said that given the number of arrests each year - 13 million - it would be unworkable for correctional officials to exempt one class of prisoner from strip-searches. Indeed, he added, even people detained for minor offenses can turn out to be the most devious and dangerous criminals. He cited, for instance, the case of Timothy McVeigh, the Oklahoma City bomber, who was detained initially for driving without a license plate.

George Washington University law professor Orrin Kerr says today's decision is a green light for prison officials.

KERR: The justices in the majority don't want to micromanage jails. So they're saying if the people running the jails think they need to do this, they should be able to do this.

TOTENBERG: University of Chicago law professor Bernard Harcourt sees the decision as an alarming break with the past.

BERNARD HARCOURT: There's a frightening element to the decision, which is that it uses the kind of logic that can turn a democracy into a police state pretty easily. And I'm not being overly hyperbolic here.

TOTENBERG: Harcourt says that the court's opinion is based on the idea of eliminating all risk at the expense of those who reasonably pose little risk. In fact, at least 10 states actually outlaw routine strip-searches of those arrested on minor charges, and the Federal Bureau of Prisons and the U.S. Marshal's Service bar visual body-cavity searches for those arrested on misdemeanor or civil contempt charges. Nonetheless, most of these correctional systems asked the court to adopt the rule that it did today.

Two of the five justices in the majority - Chief Justice John Roberts and Justice Samuel Alito - wrote concurring opinions in an apparent effort to soften the tone of the ruling. They said there might be some cases in which strip-searches are not justified because they're conducted on prisoners who are not put in the general prison population. In a second case today, the court ruled unanimously this time that police investigators are totally immune from civil damage suits for giving false testimony to a grand jury.

If witnesses could be sued, the court said, they would be reluctant to testify. The justices said the threat of being prosecuted for perjury is an adequate safeguard. But critics note that prosecutors rarely are willing to prosecute their own police investigators for such misconduct. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright National Public Radio.